Case No: (1) C5/2006/2686/A, (2) C5/2006/2686

Neutral Citation Number: [2007] EWCA Civ 703
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGARATION TRIBUNAL 
[AIT NO: AS/04935/2005]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 21st June 2007
Before:

LORD JUSTICE SEDLEY
 LORD JUSTICE MAURICE KAY
and
LORD JUSTICE LAWRENCE COLLINS

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Between:

	AS (Pakistan)	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Ms L Veloso (instructed by Messrs Edward Ismail) appeared on behalf of the Appellant.

Mr J Hall (instructed by Treasury Solicitor) appeared on behalf of the Respondent.

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Judgment

Lord Justice Maurice Kay:
1.	AS is a citizen of Pakistan.  On 7 January 2005 she applied for asylum for herself and her three children.  The basis of her application was that she had suffered serious domestic violence at the hands of her husband in Pakistan and that the authorities there failed to provide her with protection.  The Secretary of State refused her application.  Amongst other things he considered that if her experiences had been as bad as she described, she would not have put up with them for 11 years before leaving.  AS then appealed to an Immigration Judge and in May 2005 he allowed her appeal on asylum and human rights grounds.  He did so on the basis of positive credibility findings.  The account that he accepted can be summarised as follows:  AS has suffered marital troubles over a number of years.  Medical reports supported her assertion that she had been subjected to domestic violence over those years and that it had escalated.  Reference was made to two specific instances of domestic violence in 2004.  The first, in January 2004, involved the forcible administration of poisoning, resulting in hospitalisation and treatment for organophosphorous poisoning; the second, in November 2002, involved AS’s husband banging her head against a wall and causing her significant head injuries, which again resulted in hospitalisation and medical treatment referred to in a medical report. 
2.	AS had sought to involve the police but they had refused to become involved because they considered the matters to be of a family or private nature.  The medical authorities had also sought to obtain protection for AS, but that again had failed for a similar reason.  Also, attempts to gain accommodation in a Women’s Refuge had been unsuccessful through lack of room and AS had had to go back to her husband.  On the basis of those facts, as found by the Immigration Judge, he considered that the asylum case was made out.  He said: 
“I am satisfied that the appellant has been subjected to conduct capable of constituting persecution by reason of the fact that she is a member of a particular social group, namely women, consistent with Shah and Islam and that the authorities within Pakistan had failed to provide her with protection.”
The Immigration Judge also considered AS’s contention that if returned, she would be prosecuted for adultery and/or child abduction on the basis of allegations that had been made by her husband, and that accordingly she was at additional risk of persecution by reference to the Refugee Convention and of inhuman and degrading treatment and punishment by reference to Article 3 of the ECHR. The Immigration Judge did not think that there was a real risk of prosecution or conviction for adultery, but he was satisfied that there was a risk in relation to child abduction and that, on the objective evidence, it carried with it a risk of inhuman or degrading treatment in custody.  To that extent the Article 3 claim succeeded.
3.	Following the promulgation of that decision, the Secretary of State sought a reconsideration.   On 13 June 2005 a Senior Immigration Judge ordered reconsideration. On 30 January 2006 a panel of the Asylum and Immigration Tribunal (“AIT”) decided that the decision of the Immigration Judge was vitiated by legal error, in that his assessment of risk on return was flawed by a failure to consider a number of matters, including the possibility of re-location in Pakistan.  Nevertheless the panel stated:
“The positive credibility findings made by the Immigration Judge at paragraphs 68-82 are not disputed and therefore stand.”
The second stage of the reconsideration was listed to be heard on 28 June 2006. However, on that day the Secretary of State sought and obtained an adjournment to enable him to adduce fresh evidence which, if accepted, would at the very least cast doubt on AS’s credibility.  The adjourned hearing took place on 18 September 2006 before a Senior Immigration Judge and an Immigration Judge.  It is their decision which is the subject of the present appeal.  
4.	The fresh evidence, which had been described in outline on 28 June, was not formally served on AS’s representatives until 12 July.  Its most significant element was that whereas AS had always maintained that she had only arrived in this country on 5 January 2005 -- and this has been accepted by the Immigration Judge who had allowed her appeal -- in fact she had not entered on that date; she had arrived from Pakistan in June 2004, having obtained a visitor’s visa in her maiden name.  She had then gone back to Pakistan in September before returning to this country in December 2004, again relying on a second visa in her maiden name.  She has remained here since that date.  Plainly this evidence, which AS seeks to explain but does not dispute, is potentially damaging to the account of fear of persecution or ill-treatment on return.  The attempt to present her movements in a different way, now accepted to be untrue, is potentially damaging to her credibility in general.  Against that background I now come to what took place at the hearing on 18 September.  At the outset Miss Veloso, then, as now representing AS, applied for an adjournment.  She relied on the contents of a supplementary witness statement made apparently two days earlier which detailed AS’s explanations for her change in story and made reference to potentially significant conversations with her brother and sister-in-law.
5.	The adjournment was refused.  The reasons for refusal are contained in paragraph 8 of the ultimate determination of the AIT.  They are expressed in this passage:
“[Counsel] stated that she had only received the supplementary bundle from the Respondent on 8 September 2006.  Whilst the Appellant accepted that she had travelled to the UK in the name of [AK] in June 2004 and December 2004, she had not disclosed her true immigration history because she had been advised not to do so by her brother [N]. The situation for this family is complicated by the fact that her brother [AfK] is an Immigration Officer, and who has since been investigated in relation to the Appellant’s claim for asylum.  This has caused a family rift, and it is in this context that the Appellant was advised not to disclose the previous visit, which was sponsored by [AfK].  Miss Veloso wanted [N] to give evidence on the Appellant’s behalf. He could not be here today because his wife has just given birth, two days ago, and had had a complicated delivery.  She also wanted to call the wife who had advised the Appellant to attempt a reconciliation with her husband and return to Pakistan when she had stayed at their home in the summer of 2004.  We refused the request. It was not at all clear to us that either [N] or his wife would be willing to give evidence. In any event the Appellant herself could perfectly well tell us about her conversations with her brother and her sister-in-law.”
6.	That refusal of an adjournment is the subject of this appeal.  The hearing proceeded and in due course the AIT allowed the appeal of the Secretary of State against the decision of the Immigration Judge and substituted a decision dismissing AS’s application on both asylum and human rights grounds.  The salient parts of the decision were as follows:  
1) The AIT rejected a submission that the issues should be limited to those listed at the first-stage consideration.  
2) It rejected AS’s account that she had first contacted an agent with a view to fleeing in 1999 and that he still had her details and documents five years later; it rejected all her evidence about the use of an agent, there being no reason why she would not have travelled on her own passport and visas. 
3) It rejected her account of significant domestic violence prior to 2004.
4) It said:  “Clearly it is wholly detrimental to [her] case that she visited the United Kingdom in June 2004 and went back voluntarily to Pakistan.” 
5) It also placed no reliance on two reports and an arrest warrant produced by AS as evidence of the risk of prosecution, because they referred to alleged incidents in Pakistan on 3 and 4 January 2005, at which time AS had been in the United Kingdom for some weeks. 
6) In view of “the history of deception” the AIT also refused to replace reliance on medical reports in Pakistan which the original Immigration Judge had found to be supportive of the most serious and recent allegations of domestic violence.  
7) It rejected AS’s explanation for her previous reticence about her movements in 2004, namely “a [desire] to protect her brother [AfK]”.  The AIT said: 
“[She] has had many opportunities to tell the truth about her situation.  In fact she lied to the Entry Clearance Officer about her reason for a visit in her application in November 2004, she lied to the Immigration Officer on arrival, she lied at her Screening Interview, she lied at her substantive interview and again in court before [the immigration judge].  It was only when her previous applications came to light that she told the truth.” 
8) It also rejected the submission that depression might be an explanation for her conduct.  In addition, it found it appropriate to draw an adverse inference from the history of concealment as damaging her credibility by reference to section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.  All in all, the reconsideration could hardly have resulted in a more comprehensive defeat for AS.   
7.	I now turn to this appeal.  Although originally formulated more widely, the basis of it today has concentrated on the refusal of an adjournment.  Miss Veloso submits that in the circumstances of this case, that refusal was unjust and procedurally unfair and it was also based on flawed reasoning.  Adjournments are dealt with in rule 21 of the Asylum and Immigration Tribunal (Procedure Rules) 2005 in these terms:
“Adjournment of appeals
     
21.  - (1) Where a party applies for an adjournment of a hearing of an appeal, he must - 
(a) if practicable, notify all other parties of the application;

(b) show good reason why an adjournment is necessary; and

(c) produce evidence of any fact or matter relied upon in support of the application.
(2) The Tribunal must not adjourn a hearing of an appeal on the application of a party, unless satisfied that the appeal cannot otherwise be justly determined.

(3) The Tribunal must not, in particular, adjourn a hearing on the application of a party in order to allow the party more time to produce evidence, unless satisfied that - 
(a) the evidence relates to a matter in dispute in the appeal;

(b) it would be unjust to determine the appeal without permitting the party a further opportunity to produce the evidence; and

(c) where the party has failed to comply with directions for the production of the evidence, he has provided a satisfactory explanation for that failure.”

8.	It is obvious that the fresh evidence, which was properly adduced before the AIT on behalf of the Secretary of State, was potentially damaging to AS’s case.  It was made clear to the AIT, in the course of the application for an adjournment, that the evidence of her movements between Pakistan and the United Kingdom in 2004 was not disputed and that her previous account of arrival here for the first time on 5 January 2005 was untrue.  Accordingly, unless she could persuade the AIT to accept her explanation for her previous untruths and for her return to Pakistan and her husband between September and December 2004, her case was destined to fail.
9.	Her explanations were set out in the supplementary witness statement to which I have referred and which, though undated, appears to have been made on 16 September 2006.  In it she sought to explain the delay in producing it by reference to logistical difficulties, namely that she was living in Sheffield and her solicitors are in London. She does not speak English.  Her explanation for the previous untruths concerning her movements was based on family dynamics.  At first she had been advised by her brother N, who is a long term resident in this country, to conceal her two arrivals in 2004 in order to protect her other brother AfK, the immigration officer, who had had some involvement in the visa applications.  Secondly, she had returned to Pakistan and her husband in September on the advice of N’s wife, to whom she had given a very diluted account of marital disharmony without mentioning domestic violence.  Thirdly, it was only after her return to this country in December that she eventually told N’s wife the real extent of her marital problems and it was at that stage that she was advised to seek international protection, which she proceeded do on 7 January 2005.  
10.	She also explained, through the supplementary witness statement and the submissions of Miss Veloso to the AIT, that she wished to call N and his wife to corroborate her explanations, but they were unavailable because she had given birth to a child two days earlier and there had been complications surrounding the birth.  The reason why it had not been possible to obtain witness statements from them was that there had been a falling out which had lasted from at least June until 13 September.
11.	I return to the reasons given by the AIT for refusing the adjournment.  The first was:
“It was not at all clear to us, that either N or his wife would be willing to give evidence.”
The difficulty with that conclusion is that it impliedly rejects AS’s supplementary witness statement from the outset, in that it stated that, notwithstanding the fallout, N had now agreed to give evidence, but there had not been sufficient time for a witness statement to be prepared.  Moreover, it overlooks the fact that the AIT has power to compel the attendance of witnesses under rule 50.  The second reason was: 
 “In any event the Appellant herself could perfectly well tell us about her conversations with her brother and sister-in-law.”
In my judgment, that reason is unsustainable.  Whilst of course AS could give evidence about conversations with N and his wife, she would be doing so as a person who had previously given an admittedly false account.  Faced with that disadvantage, she would be seeking to provide an acceptable explanation for it.  The prospect of that explanation being accepted would plainly be enhanced if it were to be supported by other credible witnesses.  
12.	On behalf of the Secretary of State, Mr Hall submits that the statements of N and his wife, which were not before the AIT but are before us, contain nothing useful.  I reject that submission.  If their evidence were to be accepted it could greatly assist AS’s case.  Mr Hall accepts that the statements are not on their face incapable of belief. 
13.	Mr Hall’s second point is that it was right to refuse the adjournment because AS had had over two months in which to produce the evidence in witness statement form, but had failed to do so and accordingly she was undeserving of indulgence. I do not accept that submission.  It was not one of the reasons given by the AIT and, in any event, AS’s supplementary witness statement provides an explanation for the delay based on the rift in the family, which had only been healed a few days before the recent and difficult childbirth.  
14.	Again, as this is not inherently incredible, it does not support the suggestion that the delay required a draconian refusal to adjourn.  It is appropriate to keep in mind the context of this appeal.  AS is seeking protection under the Refugee Convention and the ECHR on a Shah and Islam basis.  We, like the AIT, are in the realm of anxious scrutiny.  AS’s case, if true, is a harrowing one.  In one sense she has been caught out.  However, her explanation deserves full and fair consideration and in my view it was unfair of the AIT to deny her the opportunity to call supporting evidence.  It was also wrong to do so on the basis that “she could give the evidence herself”.
15.	I would allow this appeal and remit for a further second-stage reconsideration by the AIT differently constituted.  In reaching this conclusion I do not underestimate the difficulties facing AS, but the correct place for determining whether she can in fact surmount them is the AIT and not this court.  Nor do I intend to provide comfort for others who may seek to appeal adjournment refusals in other, different cases.  This judgment is based on the specific facts of this case and the express reasons given by the AIT.
16.	I record that we have heard no submissions on what would have been a second ground of appeal, namely that the AIT erred by expanding the second-stage reconsideration to embrace matters of credibility which were to some extent apparently foreclosed by the directions given following the first stage reconsideration.  Miss Veloso would have sought to rely on DK [Serbia] and Ors v Secretary of State for the Home Department [2006] EWCA Civ 1747.  Without deciding the point, I express the view that she would have faced a very difficult task because DK [Serbia] expressly allows for exceptions and it would be difficult to say that the AIT erred by treating the circumstances of this case as exceptional.
Lord Justice Lawrence Collins:
17.	I agree that the appeal should be allowed, in particular the reason for the refusal of the adjournment in paragraph 8 of the determination, namely that AS could perfectly well tell the AIT about her conversation with her brother and sister in law was seriously flawed, but nothing said on this appeal should be thought to deter the AIT in the proper exercise of its powers and duties in relation to applications for adjournments under rule 21.
Lord Justice Sedley:  
18.	For the reasons they have given, I agree with both of my Lords as to the proper disposal of this case.  
19.	The appeal will therefore be allowed.

Order:  (1) Application granted.  (2) Appeal allowed.  Matter to be remitted to IAT for a second-stage reconsideration before a differently constituted tribunal.